It’s been over four years since David Miranda was unlawfully detained at Heathrow Airport by British police, in an effort to intimidate reporting on Edward Snowden’s surveillance revelations. Glenn Greenwald and David Miranda spoke at London’s RSA on 19 September on the occasion of their first UK visit since that nine-hour ordeal.
The Schedule 7 power allows UK police to detain an individual at the border “solely for the purpose of ascertaining if the person examined is or has been concerned in the commission, preparation or instigation of acts of terrorism.” This is a highly coercive power: failure to answer questions or comply with police demands during a Schedule 7 interview is a criminal offence.
David Miranda explained how his detention still continues to have an impact on him:
when you have nine hours sitting with seven different agents… I can still remember their faces, I remember them vividly. I have read books about Guantanamo… that day I thought that was it for the rest of my life and there was no coming back from that.
After a series of legal challenges, David Miranda won a major victory in the UK courts when the Court of Appeal ruled that Schedule 7 was incompatible with the UK’s human rights obligations because it did not exclude journalists or journalistic material.
This victory in principle still has to matched with a change of the exercise of Schedule 7 powers in practice. Since the Miranda ruling, British police have misused Schedule 7 powers against activists assisting refugees in Calais and, as Glenn Greenwald noted at the RSA event, the power is disproportionately used against particular communities.
David had an important victory in that the court ruled that this can no longer be used against journalists but this law is still being used very abusively against a huge number of people who aren’t journalists, people who are from the most marginalised populations, including Muslims who come to this country and activists who work on issues in defence of Muslim civil liberties.
Illustrating the point, just a few days after the event, Cage’s International Director Muhammad Rabbani appeared in court, charged with not complying during a Schedule 7 interview by declining to hand over a mobile phone password. Rabbani was detained at Heathrow in November last year, after returning from Doha.
District Judge Emma Arbuthnot accepted that Rabbani was carrying confidential information, instructions from an alleged victim of torture that were to form the basis of legal action in the US and the UK, but nonetheless found him guilty of non-compliance with Schedule 7, albeit with a comparatively lenient penalty of a 12-month suspended sentence and court costs of £620. Noting that Rabbani had refused to hand over this information on at least two previous occasions without consequence, the ruling states that he took “a calculated risk” and that the police were within their powers to demand this information.
Reporting from the Intercept’s Ryan Gallagher makes it clear that what is at stake here is more than simply an invasion of personal privacy. Documents from the Snowden archive show there is a direct channel for Schedule 7 material through to GCHQ. The threats to legal and journalistic privilege and other professional duties of confidentiality is clear.
The inconsistencies of the existing Schedule 7 procedures were brought to light during the course of the hearing. While the judge refused to engage with the lawfulness of repeated targeted Schedule 7 stops, which can by definition not be suspicionless, she did note that police powers at the border only extended to data stored on devices and not information in the cloud, going so far as to state that she “didn’t understand” why Rabbani was carrying devices with sensitive information on his person. A note in the ruling about Rabbani not stating outright that he was carrying excluded material also seems to leave a door open to a means of protecting sensitive information within the existing Schedule 7 code of practice.
After the ruling, Rabbani said
I was prepared to face the outcome even if it meant a term of imprisonment. As the judge said, the importance of passwords and privacy cannot be overstated.
I have been convicted of protecting the confidentiality of my client. Our only option is to change the law. We will be appealing this decision.